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Howard v. Berryhill

United States District Court, S.D. Illinois

February 14, 2018

WILLIAM A. HOWARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]

          MEMORANDUM AND ORDER

          J. PHIL GILBERT, DISTRICT JUDGE

         In accordance with 42 U.S.C. § 405(g), plaintiff William A. Howard seeks judicial review of the final agency decision denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) pursuant to 42 U.S.C. § 423.

         Procedural History

         Plaintiff applied for DIB and SSI on July 17, 2013, alleging a disability onset date of June 15, 2013. (Tr. 181-94.) His claims were denied initially, and again upon reconsideration. (Tr. 63-80, 83-90.) Plaintiff requested an evidentiary hearing, which Administrative Law Judge (ALJ) Laurie Wardell conducted on December 4, 2015. (Tr. 40-62.) The ALJ issued an unfavorable determination thereafter. (Tr. 22-39.) The Appeals Council denied plaintiff's request for review, rendering the ALJ's decision the final agency decision. (Tr. 1-4.) Plaintiff exhausted his administrative remedies and filed a timely Complaint in this Court. (Doc. 1). In the complaint, Plaintiff argues (1) the ALJ erroneously assessed the opinions of his treating physician; (2) the ALJ erred in evaluating the opinions of the state agency consultants; and (3) the ALJ improperly evaluated plaintiff's subjective complaints.

         Legal Standards

         To qualify for benefits, a claimant must be “disabled” pursuant to the Social Security Act. The Act defines a “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The physical or mental impairment must result from a medically demonstrable abnormality. 42 U.S.C. § 423(d)(3). Moreover, the impairment must prevent the plaintiff from engaging in significant physical or mental work activity done for pay or profit. 20 C.F.R. § 404.1572.[2]

         Social Security regulations require an ALJ to ask five questions when determining whether a claimant is disabled. The first three questions are simple: (1) whether the claimant is presently unemployed; (2) whether the claimant has a severe physical or mental impairment; and (3) whether that impairment meets or is equivalent to one of the listed impairments that the regulations acknowledge to be conclusively disabling. 20 C.F.R. § 404.1520(a)(4); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). If the answers to these questions are “yes, ” then the ALJ should find that the claimant is disabled. Id.

         At times, an ALJ may find that the claimant is unemployed and has a serious impairment, but the impairment is neither listed in nor equivalent to the impairments in the regulations- failing at step three. If this happens, then the ALJ must ask a fourth question: (4) whether the claimant is able to perform his or her previous work. Id. If the claimant is not able to, then the burden shifts to the Commissioner to answer a fifth and final question: (5) whether the claimant is capable of performing any work within the economy, in light of the claimant's age, education, and work experience. If the claimant cannot, then the ALJ should find the claimant to be disabled. Id.; see also Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009); Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001).

         A claimant may appeal the final decision of the Social Security Administration to this Court, but the scope of review here is limited: while the Court must ensure that the ALJ did not make any errors of law, the ALJ's findings of fact are conclusive as long as they are supported by “substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence is evidence that a reasonable person would find sufficient to support a decision. Weatherbee, 649 F.3d at 568 (citing Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The Court takes into account the entire administrative record when reviewing for substantial evidence, but it does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). But even though this judicial review is limited, the Court should not and does not act as a rubber stamp for the Commissioner. Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010).

         The ALJ's Decision

         ALJ Wardell determined that plaintiff met the insured status requirements through December 31, 2018 and had not engaged in substantial gainful activity since his alleged onset date. Furthermore, the ALJ opined that plaintiff had a severe impairment of history of a fracture of the left knee with arthrofibrosis and osteonecrosis. She also opined plaintiff had the residual functional capacity (RFC) to perform light work-except he could not kneel, crawl, or climb ladders, ropes, or scaffolds. He could occasionally climb ramps and stairs, stoop, balance, and crouch. Plaintiff had to avoid all exposure to slippery or uneven surfaces, vibrations, hazards, and operating foot controls with the left lower extremity. The ALJ noted plaintiff was born on November 28, 1961 and was 51 years old on the alleged onset date, which constitutes an individual closely approaching advanced age. She opined transferability of job skills was not material to the determination and although plaintiff could not perform any past relevant work, he was not disabled because other jobs existed that he could perform. (Tr. 27-33.)

         The Evidentiary Record

         The Court has reviewed and considered the entire evidentiary record in formulating this Memorandum and Order. The following summary of the record is directed to plaintiff's arguments.

         1. Agency Forms

         In his agency forms, plaintiff alleged that a broken left knee, high blood pressure, osteoporosis, and heart issues limited his ability to work. Plaintiff had an eighth-grade education and worked as a roofer for the previous fifteen years. Plaintiff could not carry anything or prepare his own meals, other than frozen pizza and sandwiches. His wife put his socks and shoes on for him and assisted him with bathing. Plaintiff had difficulty sitting, standing, walking, and driving for long periods. He also had trouble climbing ladders and stairs. He experienced constant pain in his left knee. Throughout the day, plaintiff ate and watched television. (Tr. 209-10, 255-66.)

         2. Evidentiary Hearing

         Plaintiff, represented by counsel, appeared at an evidentiary hearing on December 4, 2015. He testified he lived with his wife and twenty-seven year-old son. His home had five steps he navigated to get in and out.

         Plaintiff could drive for about thirty minutes to an hour. He could not lift any weight without knee pain. His left knee popped, swelled, and was painful when he walked. Plaintiff began using a cane after knee surgery in 2013, but then stopped using it until about a year before the hearing. Plaintiff's doctor recommended a knee replacement in the future. Plaintiff received injections in the past, which did not help much. His doctor instructed him not to stand for “prolonged” periods; plaintiff could stand for about fifteen minutes without pain. He could sit for about thirty minutes before his knee began hurting. (Tr. 40-62.)

         Plaintiff was unable to help around the house and his only hobby was watching television. He had to prop his leg up for thirty-minute periods throughout the day, for a total of a couple hours. (Id.)

         A vocational expert (VE) also testified at the hearing. The VE first considered a hypothetical individual with plaintiff's age, education, and the ability to perform light work, except that he could not kneel or crawl; could occasionally climb ramps and stairs, but not ladders, ropes, or scaffolds; could occasionally balance, but not on wet or uneven surfaces; and could not operate foot controls with the left extremity or work around hazards. The VE opined jobs existed that accommodated for the hypothetical individual's limitations. (Id.)

         The VE then considered the same hypothetical as above, with an additional limitation that the person had to sit for five minutes after standing for an hour, while remaining on task. The VE opined there were no available jobs that accommodated for the set of limitations. Furthermore, there were no transferable skills to sedentary positions. (Id.)

         3. ...


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